Free-to-air TV in the UK is almost universal, with consumers offered extensive programming via an antennae or satellite dish. However, an option to view the content over the Internet hasn’t always been available.
Back in 2007, TVCatchup spotted a gap in the market and over the years has been streaming TV shows to the masses for free but without rightsholders’ permission. In many markets TVCatchup would be immediately considered a ‘pirate’ service but the site had an unusual defense.
Under Section 73 of the UK’s Copyright, Designs and Patents Act, copyright in a wireless broadcast is not infringed when a party re-transmits that content by cable within “the area of initial broadcast”.
The legislation was drawn up to support the development of cable infrastructure in the 1980s and 1990s but TVCatchup felt that it applied to them when they captured UK broadcasters’ signals and retransmitted them over the Internet.
Needless to say, broadcasters including ITV, Channel 4 and Channel 5 felt differently. They took the service to court, arguing that the platform was illegal under Section 20 of the Copyright, Designs and Patents Act (CDPA), which declares infringement when a copyrighted broadcast is communicated to the public.
The High Court sided with TVCatchup, so the broadcasters took the case to the Court of Appeal, arguing that Internet streaming services are not entitled to protection under legislation intended for cable operators.
In common with other complex copyright cases, the Court of Appeal sought clarification from the Court of Justice of the European Union. Taking the view that section 73 of the CDPA should be interpreted in the light of Article 9 of Directive 2001/29, the Court of Appeal asked several questions, including whether the term “cable” could refer to Internet services.
The CJEU handed down its decision yesterday, ruling that when TVCatchup streamed copyrighted content without permission, that amounted to a communication to the public and was therefore illegal.
“The principal objective of that directive is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of communication to the public,” the Court wrote.
“Having regard to that high level of protection of authors, the Court …. held that the concept of ‘communication to the public’ … must be interpreted broadly … and that a retransmission by means of an internet stream, such as that at issue in the main proceedings, constitutes such a communication.”
Additionally, the CJEU found that Article 9 of Directive 2001/29 does not permit “national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet.”
That statement is effectively a huge thumbs-down to Section 73 of the CDPA on which TVCatchup had formed its defense.
While that will be bad news for TVCatchup, it will be of little hardship to the UK Government. The Digital Economy Bill currently moving through Parliament contains an amendment to remove Section 73 from the CDPA, with the government noting during a consultation that it was never intended to apply to Internet services.
